Before Judges Stern, Wefing and Steinberg.
The opinion of the court was delivered by: Steinberg, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Division of Developmental Disabilities.
Petitioner J.D., by his guardian D.D.H., appeals from a final decision of the Director of the Division of Developmental Disabilities (DDD) denying J.D.'s requests for immediate residential services and a hearing. We affirm.
J.D. is presently thirty-two years old, having been born on November 29, 1967. Unfortunately, he has been severely mentally retarded since birth, and also suffers from a neurological impairment, epilepsy, seizures, and a history of hyperactivity. Additionally, he has developmental disabilities limiting his language, learning, self-direction and capacity for independent living. He sometimes hits and kicks, is verbally abusive, and engages in destructive behavior. D.D.H. is J.D.'s mother, and is approximately seventy-six years old.
J.D. was initially placed by the New Jersey Division of Youth and Family Services (DYFS) at the Woods School in Langhorne, Pennsylvania, in 1975. According to D.D.H., in 1981, DYFS advised her that it intended to terminate services and recommended that she apply to DDD. D.D.H. then applied for services and was advised that J.D. had been placed on a non-urgent category of the skill development home waiting list since it was determined that J.D. was not in need of institutional placement. *fn2 In 1982, D.D.H. placed J.D. in a residential program at St. Coletta School in Jefferson, Wisconsin. She has funded the cost of the program.
In December 1985, DDD communicated with all families on the non-urgent waiting list to review their status. On February 4, 1986, D.D.H. called J.D.'s case manager and advised him that J.D. resided at St. Coletta. The parties disagree as to the balance of the telephone conversation. According to DDD, D.D.H. said that J.D. did not require DDD's services and asked to remove J.D. from the waiting list. Indeed, Nick Montegna, J.D.'s case worker, by letter dated February 11, 1986, advised D.D.H. as follows:
Pursuant to our phone discussion on February 4, 1986, I have closed [J.D.'s] file with the agency.
If you need information or services for [J.D.] in the future, please do not hesitate to call.
Although in her appellate brief, D.D.H. claims that DDD decided to close the case, it is significant to note that in her Statement of Facts supplied in her request for a hearing, she made no reference to the February 4, 1986 telephone conversation. Indeed, the Statement of Facts contains no allegation that DDD unilaterally decided to close the case. Moreover, Montegna's case notes indicate that D.D.H. "does not want services".
In 1994, D.D.H. contacted Montegna and advised him that she could no longer afford to pay for St. Coletta and requested financial assistance. We are unable to determine from the record what transpired, since Montegna's notes, contained in D.D.H.'s appendix, are illegible. However, we do know that on July 19, 1996, DDD placed J.D. in the urgent category for residential placement, apparently because his mother was over age fifty-five. By letter dated July 24, 1996, DDD notified D.D.H. that J.D. had been placed on the waiting list and categorized as urgent, but pointed out that there could be a delay in providing services due to unavailable financial resources.
On November 18, 1996, D.D.H.'s attorney wrote DDD advising that, in his opinion, DDD's failure to provide J.D. services was in violation of state and federal laws. In that letter, counsel requested "a hearing pursuant to N.J.A.C. 10:48". The relief sought was "appropriate residential placement, such other relief as may be appropriate, and reimbursement for attorney fees and costs". The letter also provided, as follows:
Additionally, I believe that your staff should have determined that an emergency exists in this situation because if [J.D.] were at home, [D.D.H.] would not be able to care for her son safely and appropriately on an extended basis. The ...